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'Whether Or Not the Law Relating to Modern Trustees' Power and Duties Have Achieved a Balance Between Managing the Trust As ISSN 2039-2117 (online) Mediterranean Journal of Social Sciences Vol 6 No 2 ISSN 2039-9340 (print) MCSER Publishing, Rome-Italy March 2015 ‘Whether or Not the Law Relating to Modern Trustees’ Power and Duties have Achieved a Balance between Managing the Trust Assets and Protecting the Interest of the Beneficiaries: A Critical Analysis’ Md. Saifur Rahman Chowdhury Advocate, Chittagong District Bar Association, Bangladesh & Legal Expert Email: [email protected] Doi:10.5901/mjss.2015.v6n2p386 Abstract The purpose of this article is to critically analyse with the reference of appropriate authority whether or not the law relating to modern trustees’ power and duties have achieved a balance between managing the trust assets and protecting the interest of the beneficiaries.The duties, power and responsibilities of trustees are normally set out in the trust documents, at least in part. In this regard the range of underpinning statutory provisions contained, in particular, in the Trustee Acts 1925 and 2000 and the Trusts of Land and Appointment of Trustees Act 1996. However there is a common law standard of duty expected of trustees and that it has been modified under s 1(1) of the Trustee Act 2000 in a range of situations. As we know fiduciary obligations are particular – and peculiar –obligations recognized by equity. In certain circumstances, typically in trusts but also in agency and other relationships, equity will require one party to the relationship, called the ‘fiduciary’, to act in the best interests of the other, called the ‘principal’. Failure to do so will mean that the first party commits the equitable wrong of breach of fiduciary duty vis-à- vis the second. In the case of a typical trust, the trustee is a fiduciary who must act in the best interests of his principals, the beneficiaries. I am of the opinion that, the law relating to modern trustees’ power and duties have achieved a balance sufficiently between managing the trust assets and protecting the interest of the beneficiaries. For the purpose of this research doctrinal research method has been applied. The doctrinal research method was more appropriate to apply primary and secondary data in this research. Keywords: Trust, Trustee, Beneficiaries, Duties and Power, Responsibilities, Interest, Balance. 1. Introduction According to Oxford Dictionary of Law a trustee has been defined as ‘a person having a nominal title to property that he holds for the benefit of one or more others, the beneficiaries’ (Oxford Dictionary of Law, p.510). It is essential for a trust to have trustees. They hold and safeguard the trust property and have complex duties to perform. It can be seen that various duties are imposed by law and/or the terms of the trust on the trustee in relation to the trust property and to the beneficiaries. In addition the trustee, as a fiduciary, has fiduciary duties. Furthermore, various powers are also conferred on the trustee. The Trustee Act 1925 and Trustee Act 2000 are the foremost relevant statutory sources in the context of trustees’ power and duties, and the protection of interest of beneficiaries. Trusts of Land and Appointment of Trustees Act 1996 sometimes are relevant in the same context. 2. Trustees’ Power, Duties and Responsibilities under Common Law and Old Statutes: In administering the trust the laws have imposed various complex duties and responsibilities on the trustees and at the same time the trustees are given wider range of power by the various instrument of trust law. In Luke v South Kensington Hotel Co (1879) 11 Ch D 121, the court held that in administering trust, the trustees must act unanimously unless the trust instrument allows otherwise. Beside the statutory duties the trustees have common law duties. The trustees owed duty of care to their beneficiary (Learoyd v Whitely [1886] LR 33 ChD 347; Bartlett v Barclays Bank Trust Company Limited [1980] Ch 515). In addition, the trustees have fiduciary duties towards the beneficiary (Bristol and West Building Society v Mathew [1998] EWCA Civ 533). In Bristol and West Building Society v Mathew [1998] EWCA Civ 533, Millet LJ described the term of fiduciary relationship as: “a fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of fiduciary is the obligation of loyalty” (Moffat, G., Bean, G., and Probert, R., 2009, p.421). 386 ISSN 2039-2117 (online) Mediterranean Journal of Social Sciences Vol 6 No 2 ISSN 2039-9340 (print) MCSER Publishing, Rome-Italy March 2015 Essentially, the fiduciary duties are mainly derived from case laws. The fiduciary duty means that trustees must not make a profit from their trustee position (Bary v Ford [1896] AC 44), must not buy trust property, must not use knowledge that they gain from their position for personal advantage (Buttle v Sunders [1950] 2 All ER 193), and generally must promote the interest of the beneficiaries above their own interest (Clements, R and Abass, A., 2011, p.450). The fiduciary duties are strictly enforced by the courts (Imageview Management v Jack [2009] 2 All ER 666). The statutory provisions inaugurated to extend the power and duties of the trustees in relation to managing the trust property and protecting the interest of the beneficiaries. It can be seen the trustees’ duties became more specific by virtue of statutory provisions and almost all major duties and power of the trustees are now enshrined in the statutes (Trustee Act 1925, Trusts of Land and Appointment of Trustees Act 1996, Trustee Act 2000). The Trustees have always had a duty to invest the trust funds to provide an income for beneficiaries and to maintain or, indeed, increase the value of the trust (Cowan v Scargill [1984] 2 All ER 750). In other word it can be define as the trustees’ power of investment. The term investment has not been defined by statute but the Oxford English Dictionary meaning of investment was accepted in Re Wragg [1919] 2 Ch 55 at 64 as ‘to employ money in the purchase of anything from which interest or profit is expected’. The ‘old law’ as in section1 of the Trustee Act 1925 restricted trustees’ powers of investment to safe such as stocks and mortgages on land. Buying land itself was forbidden as, historically, property prices have gone down as much they have gone up.( Re Power [1947] 2 All ER 282). Though the Trustee Investment Act 1961 extended the trustees power of investment in shares but still the investment power was restricted, in order to protect the beneficiaries from the trustee losing the trust fund in risky investment. Thus, after following the Law Commission No 260 (1999) report on Trustees Power and Duties the Trustee Act 2000 was enacted in 2000. The biggest changes affecting the area of the administration of trust were brought in by the Trustee Act 2000. 3. Trustees’ Power, Duties and Investments under New Statute The Trustee Act 2000 introduced the modern investment power for the trustees which broke with the past by freeing the trustees from any restriction on the kind of investments that they could made. (Panesar, S. 2001, p.28). But, the problem arose in the context of ethical investment because some private persons prefer not to invest in industries of which they morally disapprove such as gambling, alcohol or even newspapers. Therefore this issue reached before the court for interpretation that the duty of trustees is to make money for their beneficiaries, so could trustees adopt an ethical investment policy or not. In Cowan v Scargill [1985] Ch 270, the principle was established that trustees cannot make investment decision on political or ‘moral’ grounds but must consider the financial interests of the beneficiaries as paramount. In Harries v The Church Commissioner for England [1992] 1 WLR 1241, regarding ethical investment Nicholls VC said: “Trustees may, if they wish, accommodate the views of those who consider that on moral grounds a particular investment would be in conflict with the objects of the charity, so long as the trustees are satisfied that course would not involve a risk of significant financial detriment” (Harries v The Church Commissioner for England [1992] 1 WLR 1241 at 1247). Thus the case law suggests that ethical investment is legal as long as the profit motive is not neglected. However, it is important to mention here that the Trustee Act 2000 upholds the settlor’s wishes in a trust instrument to secure certain ethical investments or avoid others (Trustee Act 2000, s. 6). These wishes must be reflected in any policy statement if the trustees delegate their investment power. Section 1 of the Trustee Act 2000 imposes a statutory duty of care upon trustees concerning investment of trust property and associated activities. Section 1 (1) of the Trustee Act 2000 lays down that the trustees have a duty of care to act reasonably, having regard to any special knowledge and experience possessed or held out by them personally or in the course of their business or profession (Mohamed Ramjohn, 2013, p.158). Section 1(1) (b) of the Trustee Act is based on earlier case law which recognised that trustees would have a higher duty of care if they were professional trustees who charged for their service. In Bartlett v Barclays Bank Trust Company Limited [1980] Ch 515, Lord Brightman said: “I am of the opinion that a higher duty of cares is plainly due from someone like a trust corporation which carries on a specialised business of trust management”(Bartlett v Barclays Bank Trust Company Limited [1980] Ch 515 at 534).
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